Davis Brown Employment and Labor Law Blog

On January 14, 2013 the DOL issued guidance on FMLA leave for adult children. Pursuant to the Family and Medical Leave Act, parents of an adult child have been previously able to take FMLA for a child who is incapable of self-care. A typical request has been “grandma leave” where grandma wants bonding time with a new grandchild and to “help” the new parents. The FMLA does not provide leave in this instance or for the care of adult children who may need treatment for the flu or other conditions where they are capable of providing or potentially capable of providing their own care. The January 14, Administrative Guidance substantially expands the circumstances under which such leave may be taken. Grandma and Grandpa still don’t get time to spoil the new baby, but a complex pregnancy might give rise to leave entitlement.

Specifically, the DOL and the Administrators’ interpretation No. 2013-1 reiterates that an eligible employee may take up to twelve work weeks of unpaid job protected leave for a son or daughter who is “incapable of self-care” who is 18 or older. Child is defined quite liberally under the regulations and includes any person for whom the employee might have provided parental like care or assumed parental responsibilities.

There are four requirements that must be met. The adult child a) must have a disability as defined by the ADAAA; b) must be incapable of self-care; c) must have a serious health condition; and d) must be in need of care due to the serious health condition. All four requirements must be met in order for the FMLA allocation to be applicable. This administrative interpretation clarifies that it does not matter when the disability occurs. The disability can occur when a person is under the age of 18 and be ongoing or be a new issue after 18.

The first prong is whether or not the adult child has a disability as defined by the Americans with Disabilities Act (ADA/ADAAA). Pursuant to the ADAAA the nature of a disability has been significantly expanded and includes a mental or physical impairment that substantially limits one or more of the major life activities of an individual. In other words almost everything qualifies as a potential disability under the ADAAA. If conditions are episodic or even in remission they may still be considered disabilities. This may include such things as cancer in remission, post-traumatic stress disorder, epilepsy, diabetes and other similar conditions. Short term issues may also be a disability. Note, an uncomplicated pregnancy is not considered a disability and so leave (grandma leave) to assist with a standard pregnancy will remain uncovered.

The second prong is whether or not that child is incapable of self-care. In this instance the child must require care as a result of the condition that qualifies as a serious health condition or disability under the FMLA/ADAAA. Examples utilized by the administrative interpretation letter include an employee’s 37 year old daughter who suffers a shattered pelvis and will be unable to walk for 6 months. This would qualify for FMLA leave. The second example is the employee’s 25 year old son who has diabetes but “lives independently and does not need assistance with any ADLs or IADLs.” This would not qualify as the son is capable of self-care. However, note that the need for care can be complicated as the FMLA encompasses “psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care.” All determinations of being incapable of self-care will be fact specific and may require more consideration than might have previously been needed in a circumstance of this type. The interpretation requires that the child must need active assistance or supervision in three or more activities of daily living (ADL) or instrumental activities of daily living (IADL). Activities of daily living can include everything from grooming, hygiene, dressing and eating to cooking, cleaning, shopping or transportation. Lists are provided in the regulations but these lists are not considered to be exhaustive. Other examples may include medication management and similar items. However, almost every parent will be able to meet the “comfort and reassurance” component.

The next prong includes specifically that the issue must be a serious health condition as defined by the Family and Medical Leave Act. The definition of serious health condition remains unchanged. See 29 CFR §§825.100(a) & 825.112(a)3.

The fourth prong is whether or not the child is in need of care due to the disability. It can be noted from Congressional comments that the intent was to address adult children who had “the same compelling need for parental care” as children under the age of 18. One issue specifically addressed in the wage and hour question and answer section is whether or not a parent may qualify for leave for an adult child if a spouse or someone else is available as a caregiver. DOL specifically states as follows: “Yes. The eligible employee need not be the only one available to care for the family member in order to be entitled to take FMLA leave. Spouses employed by the same covered employer may be limited to a combined total of twelve weeks of leave during a twelve month period for leave taken for certain specified reasons. However, this limitation does not apply to leave to care for a child (including a child of 18 years of age or older) who is incapable of self-care because of mental or physical disability with a serious health condition.”

Employers may anticipate more requests for FMLA for longer time periods under this standard.